ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Seitz, Chief Judge, Gibbons and Garth, Circuit Judges.
Appellants Clifford Waymon and Robert Moore were charged with one count of conspiracy to violate 18 U.S.C. § 2314 by transporting in interstate commerce stolen property valued in excess of $5,000, in violation of 18 U.S.C. § 371. Waymon and Moore were tried on stipulated facts to the district court sitting without a jury. The sole issue here, as well as in the district court, is whether the $5,000 jurisdictional amount requirement of 18 U.S.C. § 2314 has been met. The district court in its opinion of May 3, 1977, which adjudged the defendants guilty and denied their motions for judgments of acquittal, held that the Government had proved the necessary jurisdictional amount. We affirm.
In the summer of 1976, 22,400 blank Ticketron tickets were stolen from shipments to the Jenkintown and Philadelphia branches of Gimbels Department Store. These tickets, in blank form, cost Ticketron $51.74.
A quantity (at least 2200) of the stolen tickets came into the possession of the defendants. Waymon and Moore obtained legitimate Ticketron tickets for various concerts in July, August and September, 1976. They then took the stolen blanks and the legitimate tickets to David Pope, a printer in Philadelphia. Negatives were made of the legitimate tickets, and from the negatives a block and plate was produced. The block and plate and the stolen blanks were then used to print counterfeit tickets.
The counterfeit tickets were taken from Philadelphia to various concert sites in New Jersey, Connecticut, and Massachusetts, where the tickets were sold. Some of the tickets were sold by the defendants directly to buyers at a "retail" price. Others were sold in large quantities to one Rodney Parker at a "wholesale" price.
Parker paid the defendants $3,337 for 778 tickets, which had been printed for various concerts. The defendants also sold 1072 tickets to others, presumably at "retail", for a total of $8,302.50. The combined sales made by the defendants to Parker and others resulted in revenue to the defendants of $11,639.50. Parker in turn sold the tickets which he had purchased from the defendants to concertgoers at scalper prices. It was stipulated that the overall value of all tickets -- those sold by Parker as well as those sold by the defendants -- was, as to face value in excess of $14,000, and as to the amount realized (i.e. the "market" value) over $15,000.
There is no dispute that at the time the blank tickets were stolen they had an intrinsic value substantially less than $5,000. Nor is there any dispute that the tickets had a value in excess of $5,000 at the time they were transported in interstate commerce. The issue before us, therefore, presents two questions: First, may the jurisdictional amount element of 18 U.S.C. § 2314 be determined by reference to value*fn1 at the time of interstate transportation, or must it be determined by reference to value at the time of theft? Second, if the jurisdictional amount can be determined using value at the time of transportation, did the defendants, in counterfeiting the tickets, alter the blank tickets so substantially that what was transported was not the same property as that which had been stolen?
Section 2314 of title 18 renders it unlawful to transport "in interstate commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted, or taken by fraud . . .."*fn2 Some courts have held that the $5,000 requirement must be proved by value at the time of theft. See, e.g., Stern v. United States, 204 F.2d 647 (6th Cir. 1953); Herman v. United States, 289 F.2d 362 (5th Cir. 1961), cert. denied, 368 U.S. 897, 7 L. Ed. 2d 93, 82 S. Ct. 174 (1961). These cases, however, do not deal ...